'IMPARTIALITY'[*]
by Martin Kuijer[1]
Paragraph 1Introductory comments
1.1The concept of judicial impartiality
The notions ‘partiality’ or ‘bias’ indicate an inclination to favour one side over the other. Impartial administration of justice demands that the judge is not biased with regard to the subject matter of a given dispute and the parties to the dispute. Furthermore, in deciding a case the judge may not be influenced by personal interests or preferences. Impartiality is not the same as ‘indifferent’ in the sense of not caring. The essence of impartiality is better captured by ‘neutrality’, in the sense of detachment, open mindedness and objectivity, or ‘equidistance’[2] from the parties to the case and from the subject-matter of the dispute.
This chapter deals with the (im)partiality of the judge or the judicial tribunal as such. The fact that the prosecuting authorities are convinced of the guilt of the accused before the trial commences is in principle irrelevant when ascertaining the impartiality of the judicial tribunal. However, only “in principle” since there is always "a danger that the court may accept too easily what the prosecution says and the bias of the prosecution may then convey itself to the court".[3] Yet even in these cases it is not the (im)partiality of the prosecuting authorities that is at stake, but it is the (im)partiality of the judge. The partiality of the prosecuting authorities is only the reason for the prejudice of the judicial tribunal.
The Court also clarified that an interpreter is not part of the court or tribunal within the meaning of Article 6 §1 ECHR, so that there is no formal requirement of independence or impartiality as such.[4]
1.2The bipartite structure in the case-law of the Strasbourg Court
The requirement of impartiality has been summarised by the Court simply as "absence of prejudice or bias".[5] The Strasbourg Court applies a bipartite test with regard to the requirement of impartiality. The first time the Court explicitly mentioned these two elements was in the Piersack case:
"Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under Article 6 par. 1 of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect." [6]
The supervision exercised by the Court cannot be limited to an examination of the personal convictions of a judge, since
"In this area, even appearances may be of a certain importance [...] What is at stake is the confidence which the courts must inspire in the public in a democratic society."
In this regard the Court often refers to the English maxim "Justice must not only be done, it must also be seen to be done". Some argue that the Strasbourg Court focuses too much on the mere appearance of bias:
"The question also arises more generally whether the Court is not sometimes more sensitive to appearances than to reality when considering the independence and impartiality of tribunals." [7]
There is therefore in the first place an intrinsic distinction between the subjective and objective approach. When using the subjective approach the Court concentrates on the personal attitude of a specific judge. The objective approach, on the other hand, looks at the structure of the national judiciary and at the tasks assigned to a judge which could affect the impartiality of judges in general. This structural element in the objective approach was emphasised in some of the earlier judgments of the Court:
"In determining whether or not a court is impartial, it is necessary to adopt an objective approach and to take account of considerations relating to the functions exercised and to internal organisation." [8]
The more abstract test with regard to the objective approach is interesting because the Court has always emphasised that its test is one in concreto (see *** Chapter 3 §12 ***). In principle, the standpoint of the Court is that it is not its task to give a general opinion concerning national legislation. Because of the more abstract and structural nature of the objective test, it in many ways resembles the test used by the Strasbourg Court when interpreting the requirement of independence. Potential problems of delimitation between the requirements of independence and impartiality usually exist with regard to this category of cases.[9]
There is another distinction between the subjective and the objective approach. In Le Compte, Van Leuven and De Meyere, the Court observed with regard to the subjective test that the personal impartiality of a specific judge must be assumed "until there is proof to the contrary".[10] This constitutes a difficult threshold for applicants. This is partly the reason for the growing importance of the objective test. With regard to the objective test the threshold is considerably lower, namely that the applicant could reasonably have had a "legitimate doubt" concerning the impartiality of the national judge:
"This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused (more in general "the applicant", MK) is important but not decisive. What is decisive is whether this fear can be held objectively justified." [11]
The impression is created that it will be more difficult to prove subjective partiality compared to proving the existence of objective partiality. A violation of the Convention can occur when either the subjective or the objective requirement is violated in a particular case.
When discussing the case-law interpreting the requirement of impartiality I have chosen to use a more material criterion to distinguish cases of subjective impartiality and cases of objective impartiality. The classification of cases in paragraphs two and three is affected by this approach. Complaints regarding a specific judge will be treated in the paragraph concerning subjective impartiality, even though occasionally Court and Commission have chosen to deal with the case under the heading of objective impartiality.
1.3The need to challenge for Strasbourg purposes
In *** Chapter 3 §13 *** the issue of waivers was discussed. With regard to the question whether one could waive his right to an independent and impartial tribunal, some comments were made about the closely related issue of the need to challenge an allegedly partial judge. The Strasbourg institutions have decided that challenging a disputed judge has to be regarded - in principle! - as a ‘domestic remedy’. That proposition has two implications. On the one hand, a complainant wil not be regarded as a ‘victim’ of a violation of the requirement of judicial impartiality after a successful challenge.[12] On the other hand, an application will most likely be declared inadmissible on the basis of Article 35 of the Convention (which provides that the Court may only deal with a case after all domestic remedies have been exhausted) if no challenge was made.[13] The Court's judgment in the Bulut case can serve as an example of this general approach:
“In any event, it is not open to the applicant to complain that he had legitimate reasons to doubt the impartiality of the court which tried him, when he had the right to challenge its composition but refrained from doing so.” [14]
In subsequent case-law, however, the Court has nuanced its standpoint. A challenge is only mandatory for Strasbourg purposes in principle. In the Castillo Algar case, the applicant failed to exercise the right of challenge, but he complained about the composition of the tribunal before the Supreme Court and the Constitutional Court. The Court held:
"In these circumstances, notwithstanding the fact that neither the applicant nor his counsel challenged the two judges concerned before the start of the trial, the courts of the respondent State cannot be said to have been denied an opportunity to put right the alleged violation of Article 6 para. 1. Consequently, the Court dismisses the Government's preliminary objection." [15]
The Court does not therefore require that a complainant has used his right to challenge individual judges, as long as the national courts have had the opportunity to examine the substance of a complaint concerning partiality brought forward by the complainant in one way or the other.
Almost all legal systems have written provisions concerning the disqualification of judges and the procedure to challenge judges.[16] The existence as such of legal provisions concerning disqualification and removal of judges as well as the possibility to challenge members of the judiciary is a factor that is taken into account by the Court when examining the objective test.[17] The Court has adopted a fairly liberal approach with regard to restrictions of the use of the right to challenge.
The Commission has allowed domestic law to restrict the use of the right to challenge a judge if judicial proceedings would otherwise be interrupted too often by the need of giving interlocutory decisions.[18] Another example of a legitimate restriction of the use of the right to challenge is provided by the case of Barberá, Messegue and Jabardo.[19] Under Spanish law no challenge may normally be made after the hearing has begun, unless on the ground of subsequent events. In the applicant's case before the Audiencia Nacional there had been a last-minute change of membership of the bench without notice. Since counsel did not know in advance the name or personality of the substitute judge, they could not, a priori, adduce any legal ground for a challenge. The opportunity for the applicants to challenge the substitute judge was therefore limited. In the Court's view, the circumstances surrounding the change in the membership of the Audiencia Nacional did not appear to be such as to make its impartiality open to doubt. The Court did however consider the change of membership of the bench to be a relevant factor when assessing the fairness of the trial.
Neither does the Convention require national law to provide for the possibility to challenge a judicial tribunal 'en bloc', if the complaining party does not simultaneously provide specific complaints against each of the individual members of the tribunal.[20] The instrument of challenging a judge is not an appropriate method to address structural defects in the functioning of the judiciary. The Court dealt with this issue in the Debled case. Dr. Debled was summoned to appear before the Ordre des médecins (a Belgian medical association) after several of his patients had complained about excessive charges. Debled challenged almost half of the members of the tribunal, on the ground that they belonged to a certain medical union. He alleged that the medical unions had gradually taken control of the Ordre with the result that the policy pursued by the Ordre in fact simply reflected the unions' policies, which were designed to protect the interests of union members. Consequently, those who opposed this policy had good reason to fear that the union members on the tribunal would not show the required impartiality. On the basis of national law the challenge against a specific judge of the tribunal had to be examined by the remaining members of the tribunal. Application of this rule was in the present case problematic since Debled had challenged half of the members of the tribunal. If all judges against whom a challenge had been made would withdraw from the deliberations, there would not have been the required quorum to take a legally binding decision. The tribunal therefore adopted the following approach: when examining the challenge to judge X the challenged member would not be present. The remaining members, including the other challenged members, would rule on the issue. The tribunal would turn the challenge to judge X down, after which judge X could take part in the deliberations again. Judge X could then decide on the challenge to judge Y, against whom a challenge on identical grounds had been made. This policy is undesirable in the light of (the appearance of) judicial impartiality. The Court acknowledged this problem in principle, but reached a different conclusion on the basis of the specific facts of the case:
"The participation of judges in a decision concerning challenges against one of their colleagues can pose problems if identical challenges have been directed against them. But the special circumstances of the present case must be taken into account. Dr Debled had challenged several members of the Appeals Board; their exclusion from all the decisions concerning those challenges would have paralysed the whole disciplinary system." [21]
It seems that the Court granted the national judiciary some discretion out of practical reasons. The Court's conclusion could furthermore have been influenced by the fact that the Court considered the complaints concerning the challenged members to be vague and abstract in nature. Since Debled had not provided specific, material facts that could have revealed personal animosity or hostility, his objections could not be regarded as well-founded.
The Debled case also raises the question which judge should be dealing with the challenge. Often a challenge made by one of the parties is examined by the very same judge whose impartiality is being questioned. One can doubt whether the judge has the required objectivity to rule on his own ability to hear the case. In my view it would be desirable in situations of this kind to institute a tribunal 'ad hoc', consisting of for example all presidents of the several chambers of the court, to examine and decide upon the challenges.[22]
Paragraph 2Subjective impartiality
2.1The judge personally knows a party to the proceedings or a party who has an interest in the outcome of the proceedings
Obviously, (the appearance of) judicial impartiality could be threatened by the fact that the judge is familiar with persons who are involved in or who have an interest in the outcome of judicial proceedings before him.[23] Examination of the case by that particular judge will in most cases be contrary to the requirement of impartiality. Most case-law in this field originates from the Commission. It is somewhat surprising that the Commission has never acted particularly strict when dealing with complaints of this kind. As a general rule the Commission has ruled that personal acquaintance of a judge with an interested party cannot reasonably undermine the confidence in judicial impartiality if the link between the judge and the interested party is "too remote".[24] The Commission has rejected an application, in which personal and professional links existed between the lawyer of the opposing party and the Advocate General who advised the Court of Cassation.[25] Equally unsuccessful was a complaint about judicial proceedings against state authorities, in which the judge was a personal friend of several members of government and had been a candidate for the, at that moment, ruling political party.[26] The Commission adopted a similar attitude in the framework of jurytrials. In the case of X. – Austria[27] the applicant complained about the personal acquaintance of one of the jurors (out of eight) with one of the parties to the judicial proceedings. The Commission decided that this fact did not necessarily mean that the jury as such had been partial. The Commission did, however, attach importance to the fact that the jury had reached its ultimate verdict unanimously.
Complaints were seldom transmitted to the Court.[28] With the introduction of the 11th Protocol, the ‘new’ Court took a more strict standpoint than the Commission.
In the Sigurðsson case, the applicant complained that one of the Supreme Court Justices hearing his case against the National Bank of Iceland could not be considered “impartial” in the sense of Article 6 §1 of the Convention, on account of the close financial relationship between the judge and her husband on the one hand and the National Bank of Iceland on the other. Shortly before and while the applicant’s case was pending before the Supreme Court, the judge’s husband had serious financial problems and had concluded a favourable debt settlement with the National Bank of Iceland.
The Court dealt with the case under the ‘objective impartiality’ requirement since there was no evidence to suggest that Supreme Court Justice Guðrún Erlendsdóttir had been personally biased. The case is nonetheless discussed in the paragraph concerning subjective impartiality, because the underlying problem is related to the specific judge (see *** paragraph 1.2 ***).
The Court examined three sets of circumstances, which could give rise to an issue of impartiality under Article 6 §1.
First of all, the fact that the judge’s husband owed debts to the National Bank at the time of adjudication. The Court held that the debts owed, totalling approximately EUR 30,000, could reasonably be considered moderate and that there was nothing to indicate that this fact alone could have constituted financial pressure capable of affecting the judge’s impartiality.
Secondly, the Court held that the mortgage certificates issued to a financial institution owned by the National Bank did not establish as such any direct financial link between the judge’s husband and the National Bank that could call the judge’s impartiality into question.